Brief Challenging Denial of Due Process and Rights Under the ADA, Title II

COURT OF APPEALS OF THE STATE OF NEW MEXICO

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE
Plaintiff – Appellee,
v.
KAREN MARIE KLINE, Pro Se,
Defendant – Appellant,

CROCKER, LTD., AMERICAN GENERAL
FINANCIAL SERVICES, INC.,
AND MANHATTAN CONDOMINIUM UNIT
OWNERS’ ASSOCIATION,
Defendants – Appellees,

KAREN MARIE KLINE, Pro Se,
Petitoner-in-Redemption – Appellant,

RICHARD B. GREEN,
Purchaser; Cross- and Counter-Petitioner-in-Redemption – Appellee.

COURT OF APPEALS NO: 26930

DISTRICT COURT NO: D-0101-CV-2005-00515

APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT,

THE HONORABLE MICHAEL VIGIL, PRESIDING

(with additional four pages of exhibit and what clerks refused to file on

February 27,

2006 when I came to them wanting to deposit my cashier’s

check for $128,250.

And, showing the colors I had to use to keep the

issues straight because of my

disability making it too confusing otherwise.)

TABLE OF CONTENTS

COVER   .     .     .     .     .     .     .     .     .     .     .     .     . .     .     .     .    1

TABLE OF CONTENTS     .     .     .     .     .     .     .     .     .    .     .     .     2

TABLE OF AUTHORITIES.     .     .     .     .     .     .     .     .     .     .     .   3-4

DISPOSITION OF THE COURT BELOW BEING APPEALED   .     .     . 4

STATEMENT REGARDING RELATED APPEALS    .     .     .     .     .     .4

ISSUES PRESENTED ON APPEAL.     .     .     .     .     .     . .     .      .    4-5

STANDARD OF REVIEW .     .     .     .     .     .     .     .      .     .       .     . 6

STATEMENT OF THE CASE.     .     .     .     .     .     .     .   .     .     .    . 6-10

SUMMARY ARGUMENT – ISSUE I.     .     .     .     .     .     .      .     .     10-17

ISSUE II        .     .     .     .     .     .     .     .     .     .     .     .      .     .     .   17-20

ISSUE III   .     .     .     .     .     .     .     .     .     .     .     .       .     .     .      21-26

ISSUE IV    .     .     .     .     .     .     .     .     .     .     .     .       .     .     .     26-28

ISSUE V     .     .     .     .     .     .     .     .     .     .     .     .       .     .     .     28-30

ISSUE VI     .     .     .     .     .     .     .     .     .     .     .     .       .     .     .    30-31

ISSUE VII .    .     .     .     .     .     .     .     .     .     .     .       .     .     .      31-34

ISSUE VIII .     .     .     .     .     .     .     .     .     .     .     .        .     .     .    35-37

ISSUE IX    .     .     .     .     .     .     .     .     .     .     .     .     . .     .     .    37-38

CONCLUSION .     .     .     .     .     .     .     .     .     .     .         .     .     .   38-39

DEPOSIT FOR REDEMPTION UNDER STATUTE 39-5-18    . .     .    . 41-43

The recording device I used in citing references from the transcript CDs was my
Toshiba Satellite M45-S359 Laptop computer, using the FTR Gold Player Plus
program.

Requests for Relief are in the last paragraph of each issue.

Standard of review in each issue is red so I can tell where I have it; the pain from
snapping something in my back has made all the pain in my stomach muscles and
diaphragm come back, making it so hard to stay focused. This is from losing tone
in my muscles that should have protected the bones in my back, from not being
able to sleep and walk because of the stress.

TABLE OF AUTHORITIES
Cases – U.S. Supreme Court
Barnitz v. Beverly, 163 U.S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042   . . . . .. 34
Boddie v. Connecticut, 401 U.S. 371, 379 (1971) . . . . . . . . . . . . . . . . . .   . . . 21
Brine v. Hartford F. Ins. Co. 96 U.S. 627, 637, 24 S. L. ed. 858, 862 . . .   . . .34
Boerne, 521 U.S., at 532     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Garrett, 531 U.S.   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Grannis v. Ordean, 234 U.S. 385, 394 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Hibbs, 538 U.S., at 737 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   . .   . .24
Jones v. Flowers, U.S. Supreme Court, April 26, 2006 . . . . . . . . . . . . . . . .18, 36
Kimel, 528 U.S., at 86    . . . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . . . . . .. . .25
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
70 S.Ct. 652, (1950)   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 27, 29
Tennessee v. Lane, 541 U.S. 509 (2004)   . .6, 9, 14, 21, 22, 23, 24, 25, 26, 30, 35
Cases – New Mexico
Chavez v. County of Valencia, 86 N.M. 205, 521 P.2d 1154 (1974) . . . . . . . . 15
Dyer v. Pacheco, 98 N.M. 670, 651 P.2d 1314 (Ct. Appl. 1982). . .. . . . . . . .   20
Gengler v. Phelps, 89 N.M. 793, 558 P.2d 62 (Ct. App. 1976) . . . . . . . . . . . . .19
HSBC Bank v. Fenton, Opinion Number: 2005-NMCA-138 . . . . . . . . . . 5, 19, 31
Nesbit v. City of Albuquerque, 91 N.M. 455 (NM S.Ct. 1977) . . . . . . . . . . 6, 15
Ortega v. Vigil, 22 N.M. 18, 158 P. 487 (1916)   . . . . . . . . . . . . . . . . . . . . . .20
Credit vs. Williamson, 107 N.M. 212, 755 P.2d 56 ( S.Ct.1988) . . . 13, 16, 29, 33
Shumate v. Hillis, 80 N.M. 308, 454 P.2d 965 (1969 . . . . . . . . . . . . . . . . . . . 16
Speckner v. Riebold, 86 NM 275, 523 P.2d 10 (1974) . . . . . . . . . . . . . . . . . . 31
State v. Duran, 107 NM 603, 762 P.2d 890 . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Western Bank v. Fluid Assets Dev. Corp., 111 N.M. 458,
806 P.2d 1048 (1991)   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Cases - Other
Action Realty & Invs., Inc. v. Grandison, 31 Fla. L. Weekly D786
(Fla. 4th DCA, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949) . . . . . . . . . . . . . . . . . . . . . . 14
Beneficial Delaware, Inc. v. Lena Waples, Delware Superior Court,
July 3, 2006   . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   30
Bronson v. Kinzie, 1 How. 311, 11 L. ed. 143    . . . . . . . . . . . . . . . . . . . . . . . 34
Calasa v. Greenwell, 2 Haw. App. 395, 398, 633 P.2d 553, 555 (1981)    . . . . 27
Citicorp Savings v. First Chicago Trust Co., 269 Ill. App. 3d 293 (1995)   . . 6, 31
Clay v. Horton Mfg. Co., 172 Wis. 2d 349, 353-54,
493 N.W.2d 379 (Ct. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Craft v. Storey, 1997 CO Court of Appeals,
resting on Plute and Osborn Hardware . . . . . . . . . . . . . . . . . . . . . . . .   33
Delahay v. Clement, 4 Ill. 201    . . . . . . . . . . . . . . … .. . … . . . . . . . . . . . . . 33
Deluxe Motel, Inc. v. Patel, 770 So. 2d 283, 284 (Fla. 5th DCA 2000)   . . . 31, 32
Fortier v. Dona Ana Plaza Partner, 747 F.2d 1324 (10th Cir. 1984) . . . . . . . 15
Frahn v. Greyling Realization Corp., 239 Ala. 580, 583,
195 So. 758, 761 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   14
Franklin Sav. Ass’n v. Office of Thrift Supervision, 31 F.3d 1020 . . . . . . . . . .15
Hillis Motors, Inc. v. Hawaii Auto Dealers’ Ass’n, 997 F.2d 581 . . . . . . . . . .18
Indian River Farms v. YBF Partners, 777 So. 2d 1096, 1099
(Fla. 4th DCA 2001)   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
In re Calder, 907 F.2d 569 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
International Savings and Loan Assoc., Ltd. v. Abelardo   . . . . . . . . . . . . . . . 27
John Stepp, Inc. v. First Fed. Sav. & Loan, . 379 So. 2d 384, 386
(Fla. 4th DCA 1980)   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   32
Kober, 988 S.W.2d at 232 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Parker v. Bain, 68 F.3d 1131 . . . . . . . . … . . . . . . . . . . . . . . . . . . . . . . . . .15
Roberts v. C.I.R., 175 F.3d 889 . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Saidi v. Wasko, 687 So. 2d 10, 11 (Fla. 5th DCA 1996)   . . . . . . . . . . . . . . . . 31
Valley Transit Mix v. Miller 928 F.2d 354 (10th Cir. 1991) . . . . . . .. . . . . . . 15
Vansant v. Allmon, 23 Ill. 30    . . . . . .. . . . . . . .. . . . . . … . . . . . …. . . .. . . 33
Ware v. Schintz, 190 Ill. 189, 193, 60 N.E. 67, 69    . . . . . . . . . . . . . . . . . . . 33
Winhoven v. United States, 201 F.2d 174 (9th Cir. 1952) . . . . . . . . . . . . . . . . 14
Federal Acts, Statutes, and the Constitution
ADA, Title II - Americans with Disabilities Act, Title II . . . . . .5, 7, 9, 13, 14, 21,

. . . . . . . . .. . . . . . . . . .. . . .. . . . . . 22, 23, 25, 26, 30, 33, 35, 37, 38, 39
ADA, Title II, §§12131-12134   . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 21
ADA, Title II,42 U.S.C. §12131 . . . . . . . . . . . . . . . . . . . . . . . . . . .. .21, 24, 30
Art. I, §10, of the Constitution of the United States   . . . . . . . .. . . . .. .. . . . 30 31
Due Process - Amendment 14 of the Constitution . . . . . . 4, 5, 10, 12, 13, 14, 16,
. . . . . . . .   20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 37, 38, 39, 40
11 U.S.C. § 362      . .. . . …. .. . . . . . . . . . . . .. . . . . . . . 10, 12, 13, 15, 16, 29
Automatic Stay .    . . 4, 6, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 25, 28, 36, 38, 39
28 U.S.C. Part I, Chapter 21 §455 -- §455   . . . . . . . . . . . .   . . .   . . . . . . …. 35
28 U.S.C. Chapter 1§ 35.134   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
28 U.S.C Chapter 1§ 35.107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
New Mexico Statute
NM Statute 30-26-1. . . . . . . . .   . . . . . . . ..   . . . . . . . . . . . . . . . . . . . . . . . .31
NM Statute 39-5-18 . . . . . . . . . … . . . . . . . . . . . . . . . . . . . . . . 7, 8, 31, 33, 41
Other Authorities
Federal Rule of Civil Procedure Rule 60(b)(4)    . . . . . . . .    . . . . . . . . . . . 6, 15
Local Rule 1-304 . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .. .    . . . . .. . . . . . . 6
Local Rule 1-306 . . . . . . . . . . . . . . . . . . . .   . . . . . . . . . .    .    . . . . . . . . .6, 9
Local Rule 1-306(G) . . . . . . . . . . . . . . . . . . . . …… . .    .. .   . . . . .. . . . . . . 9
LR8-Form 1 . . . . . . .. . . . . . . . … . . . . .   .    . . . … . . . . .. . . . .. . . . . . . .. 27
NMRA – Rule 1-005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   4, 10 12, 14, 16
NMRA – Rule 1-006 . . . . . . . .. . . . . . . . . . . .   . . . . .. . . . . . .. 11, 21, 23, 27
NMRA – Rule 1-007 . . . . . . . . … . . .. .. . . . .. . .... . . . . . . .    9, 21, 23, 24, 26
NMRA – 60(b)(4); N.M.R.Civ.P. 60(b)(4) . . . . . . . . .... … .. .   . . . .. . . .. . 24
Rule 1-015 NMRA   . . . . . . . . . . … . . . . . . . . . . . . . . .. . .... . . . . . . . . . . 11
Rule 1-056 NMRA    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . … . . . . . . . . . . . 25
Rule 1-059 NMRA . . . . . . . . . . . . . . . . . . . . … . . . . . . . . . . . . . . . . . . . . . 37
SCRA 1-055 . . . . . . . . . . . . . . ….. ..   . . . . .. . . . . . . . . . . . . . . .. . . . .. . 17
Wright & A. Miller, Federal Practice and Procedure § 2862 (1973)    . . . . . . . .26
Wright, & A. Miller, Federal Practice and Procedure: Civil § 2862,
at 324-25 (2d ed. 1995) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    27

DISPOSITION OF THE COURT BELOW BEING APPEALED

This is an appeal of a summary and default judgment of foreclosure, Approval of
Sale, Order Correcting Certificate as to the State of the Record, the Certificate of
Redemption; and against being denied accommodation of my disability and any
hearing on my disability.

STATEMENT REGARDING RELATED APPEALS

There are no related or prior appeals.

ISSUES PRESENTED ON APPEAL

ISSUE ONE: Whether the amended complaint served during the automatic stay
was void, and, (B): whether Kline’s due process right under the 14th Amendment
to be served the amended compliant, pursuant to Rule 1-005 NMRA, was denied,
and, (C): whether the violation of this basic due process right and of the stay
caused the foreclosure judgment to be void.

ISSUE TWO: Whether the actions taken by Kline constituted an appearance with
the result that she was not in default for purposes of a default judgment.

ISSUE THREE: Whether foreclosure judgment entered December 15, 2005,
and Approval of Sale March 8, 2006, violated ADA, Title II, by failing to
accommodate Kline’s disability.

ISSUE FOUR: Whether Court acted improperly in entering its Order Approving
Sale when Kline was denied due process under the 14th Amendment: one day
notice of a hearing was insufficient notice, and hearing was held before Kline’s
time to respond to Motion had expired.

ISSUE FIVE: Whether the foreclosure sale held without notice to Kline was a
denial of Kline’s due process rights under the 14th Amendment.

ISSUE SIX: Whether the order approving foreclosure and foreclosure sale and
Certificate of Redemption denied Kline’s right to reinstate her mortgage given
she had wired the money specified by Ocwen and pursuant to paragraph 19 of
her mortgage.

ISSUE SEVEN: Whether Fenton case deprived Kline of her right to redeem as
provided in her mortgage at paragraph 24. (The state legislature has clarified the
law for the protection of mortgagors.) (B): Whether Plaintiff’s failure to attach
to the complaint the mortgage with the redemption right and Kline’s signature
invalidates the summary and/or default judgment.

ISSUE EIGHT: Whether an appearance of partiality given by the First Judicial
District Court in this case, possibly related to Kline suing the First Judicial District
Court in Federal Court for discrimination under the ADA, Title II, invalidates its
Judgments and Orders.

ISSUE NINE: Whether Kline’s lawyer, Tami Schnieder, prejudiced Kline by
falsely writing Kline had been served the amended complaint before her
bankruptcy and Kline was incompetent; by not returning Kline’s calls, by
quitting in the middle of a continued hearing and by failing to support with
evidence her argument that the sales price was too low to be valid.

The issues were preserved at trial, but there was no trial or any hearing prior to the
December 15, 2005 entry of Default Judgment. And by motions to Reconsider, later.

STANDARD OF REVIEW

Nesbit v. City of Albuquerque

, 91 N.M. 455 (NM S.Ct. 1977)

“Judgment which is void cannot be cured by subsequent proceedings.” On

459, “Since the 1973 judgment was void, the 1976 district court was

required

to set it aside pursuant to N.M.R.Civ.P. 60(b)(4). [§ 21-1-1(60)(b)

(4) N.M.S.

A. 1953 (Repl.Col.1970)]. There is no discretion on the part of

a district court

to set aside a void judgment. Such a judgment may be

attacked at any time in

a direct or collateral action.

Tennessee v. Lane

, “Title II is aimed at the enforcement of a variety of

basic rights, including the right of access to the courts at issue in this case,

that

call for a standard of judicial review at least as searching, and in some

cases

more searching, than the standard that applies to sex-based

classifications.”

Citicorp Savings v. First Chicago Trust Co.

, 269 Ill. App. 3d 293

(1995),

“On appeal, the reviewing court determined that it would have

been against the

interests of justice for the trial court to have confirmed

the sale given that

Citicorp had represented to the mortgagors that the sale

would be postponed

and that the sale took place by mistake.”

STATEMENT OF THE CASE: SHOWING DATES THINGS TOOK PLACE

Original action was complaint for foreclosure filed March 9, 2005 [RP 1].
Appellant Kline, as defendant, was served March 18, 2005 [RP 62]. Amended
complaint was filed March 16, 2005 [RP 27]. Kline (I) filed bankruptcy March
21, 2005. I and others were served the amended complaint March 29, 2005
[RP 64, 66, 68, 70] in patent violation of the automatic stay. Suggestion of
Bankruptcy Relief, filed July 13, 2005 [RP 80] shows bankruptcy existed.

July 25, 2005, Answer and Cross Claim of Manhattan Condominium Unit
Owners’ Association (hereinafter “Association”) was filed [RP 84]. Summons
was issued to Crocker, Ltd. [RP 99] and American General Financial [RP 102];
service was July 27, 2005 [RP 105, 108].

Filed August 5, 2005, were Motion for Summary Judgment and Application for
Entry of Stipulated Judgment and Default Judgment with Certificate of Service
showing I was not served [RP 126], Memorandum in Support [RP 111],
Affidavit [RP 130, 132], Certificate of Service and Notice Pursuant to Local
Rule 1-304 and 1-306 [RP 134], and Certificate as to the State of the Record
[RP 136], citing only the Amended Complaint.

On October 5, 2005, I filed to excuse the Honorable Timothy Garcia [RP 147].

On October 24, 2005, I filed an answer stating factual disputes [RP 149].

On November 4, 2005, I filed Motion for Accommodation under the ADA,
Title II, [RP 152] with Neuropsychological Evaluation done for the Division of
Vocational Rehabilitation.

On December 15, 2005, without any hearing, despite factual disputes, Summary
Judgment, Stipulated Judgment, Default Judgment, Decree of Foreclosure, Order
of Sale and Appointment of Special Master were entered [RP 160] relying on the
Certificate of the Record [136] citing Amended Complaint, but failing to mention
it’s service on March 29, 2005, violated the stay [RP 64, 66, 68, 70]. None was
served on me.

December 28, 2005, Notice of Sale on Foreclosure filed [RP 168] without notice
to me.

On January 3, 2006, unaware of Foreclosure Judgment and Order of Sale, I filed
Request for Additional Extension [RP 171] because my computer which I’d
replaced in November was still not working and I need it to compensate for my
mental disability. Later Deutsche filed Certificate of Mailing [RP 172].

On January 27, 2006, without notice to me, Foreclosure Sale was held.

February 7, 2006, I filed Request for Hearing on Objections to Order Approving
Sale and to Foreclosure Judgment [RP 208].

February 9, 2006, Affidavit of Juliane Hope, my listing agent, was filed [RP 212].

February 14, 2006, I filed Petition for Certificate and Order of Redemption [RP
219] asking Court pursuant to NM Statute 39-5-18, to determine amount needed
to redeem [RP 219]; and Summonses were issued [RP 221, 223]; returns were
filed February 23, 2006 [RP 288, 290].

February 17, 2006 I filed Correction to Objection to Approval of Sale and Fore-
closure Judgment [RP 223] again thinking the Approval had already taken place.

February 21, 2006, I filed Motion for Mandatory Damages for Willful Violation
of the Automatic Stay [RP 238]

On February 23, 2006, I filed asking the court to Determine the Amount Validly
Due on Liens on Property at 729 W. Manhattan Unit #3 [RP 269].

On February 24, 2006, Deutsche filed Reply [RP 292] to Kline’s Objection,
Motion for Approval of Order Confirming Special Master’s Report and Approving
Foreclosure Sale [RP 296], and Request for Hearing on Motion for Order
Approving Special Master’s Report and Confirming Foreclosure Sale [RP 303].

February 24, 2006, I filed 2nd request for hearing on my Objection to Order
Approving Sale [RP 325] and 3rd [RP 326].

February 27, 2006, clerks refused my cashier’s check deposit of $128,250 per NM
Statute 39-5-18, see check at [RP 534, 540, 543]. I filed Correction to Total for
List of Liens Shown in My Petition to the Court to Determine the Sum Validly
Due on Claimant’s Liens on the Property at 729 W. Manhattan, Unit #3 [RP 332]
and Notice of Letter of Intent to Make Offer to Purchase 729 W. Manhattan,
Unit 3 on or before February 28, 2006 and Indicating the Urgency of Having my
Redemption Allowed [RP 336].

February 28, 2006, Ocwen, where I paid my mortgage, said to wire arrears and
costs and they’d reinstate per paragraph 19. So $16,023.72 was wired next day,
March 1. Wire instructions [RP440].

March 2, 2006 Notice of Hearing set for March 8, 2006, 10:00a.m. on
Leverick’s Motion for Order Approving Special Master’s Report and
Confirming Foreclosure Sale, filed [RP 357].

March 7, 2006, 11:25a.m. Notice of Hearing at 10:00 March 8, 2006, delivered
to me.

March 8, 2006, hearing was held on Leverick’s Motion for Order Approving
Special Master’s Report and Confirming Foreclosure Sale. See tapes/CDs.

March 13, 2006, Agnes Samora, Adult Protective Services, picked up CD [RP 439].

March 16, 2006, I filed Motion to Reconsider Order Approving Foreclosure and
Foreclosure Sale and to Set Aside Foreclosure Judgment [RP 440]. Thereafter I
hired Schneider.

May 5, 2006, she appeared for me but quit at 4:59:21 after the hearing was
continued.

May 8, 2006, I filed Answer to Tami Schneider’s Motion to Withdraw.

On May 9, 2006, I appeared pro se at the hearing.

May 12, 2006 I filed my Motion Asking the Court to Provide Copy of Original
Certificate as to the State of the Record [RP 823].

June 1, 2006 another lawyer entered appearance for me [RP 837] but couldn’t
say what day I had to answer to avoid default and had no idea, he said, about
ADA, Title II. He wrote copious emails rather than reading Tennessee v. Lane,
and said I couldn’t fire him. I had to file Motion to Terminate [RP 864] before
he let me fire him; two days later, he withdraw [RP 865].

At June 20, 2006 redemption hearing, I read aloud from and filed, “This is what
I needed to read at the hearing, but was not allowed to read in full. This needs to
be part of the record.” [RP 887]. My oral motion requesting a hearing on my
disability to determine how much additional time I should have had was denied
but Court would not sign order so it could not be filed. The court entered for
the opposition [RP 867, 869, 872, 878, 881, 884].

On June 30, 2006, I filed Motion to Reconsider Order Granting Amended and
Restated Redemption Petition of Richard B. Green and Order Denying Oral
Motion for Hearing on Disability to Determine what Accommodation Is Needed
Pursuant to the ADA, Title II [RP 900]. I thought reconsideration of
accommodation would be denied by operation of law after 30 days and making
up for the judge refusing to sign the order. But the appeal deadline came up.

July 20, 2006, I filed Notice of Appeal [RP 912].

July 21, 2006, Deutsche filed Reply to Defendant Karen Marie Kline’s Response
to Reply by Plaintiff to the Motion to Reconsider Order [RP 924].

August 7, 2006, I filed “Deutsche Bank’s Reply to Response to Reply Exceeds
Provisions of Rule 1-007.1 and LR1-306(G) and on This Account Must Be
Stricken” [RP 934].

August 8, 2006, I filed Request for Hearing pursuant to LR1-306(G) [RP 937]. For
anyone with loss of working memory and processing speed 306(G) is very hard to
follow. A modification like that in federal courts for pro se parties is needed, and,
lawyers should be obliged to follow 306(G) the way pro se parties are. I have a
letter from Petra Jimenez Maes returning my papers in an earlier case, Exhibit 1,

because I didn’t follow 306(G). Now she’s a Justice in N.M. Supreme Court.
Was she wrong when she made it imperative for me to follow 306(G). Or are
judges abusing discretion when they do not enforce it among lawyers today?

On August 15, 2006 First Judicial Court filed [RP 960] saying, “We are unable
to set a hearing on the above-mentioned matter because this Court no longer
has jurisdiction while the case is on appeal.” Hilarious! This is the same old
response, “No,” but dressed up in words.

On August 17, 2006, I filed Corrections to Notice of Appeal [RP 961], and later,
Corrections to Corrections to Notice of Appeal [RP 964]; August 18, 2006, I
filed Correction to Certificate of Service for Corrections to Corrections to Notice
of Appeal [RP 969].

SUMMARY OF ARGUMENT

ISSUE I. The Court improperly entered Judgment of Foreclosure [RP 160]
because I nor any party was validly served the Amended Complaint. I filed
Chapter 13 on March 21, 2005, as shown by Exhibit 1 referenced on p.1 of
“Correction to Objection to Approval of Sale and Foreclosure Judgment”
[RP 223]. Stay was not lifted prior to service of the Amended Complaint on
March 29, 2005 [RP 64, 66, 68, 70]. Rule 1-005 NMRA provides that all
papers be served on each party. Failure to serve me denied me due process under
the 14th Amendment. Amended Complaint served during my bankruptcy [RP 64,
66, 68, 70] was void because it violated 11 U.S.C §362. It didn’t confer jurisdiction.

My Motion for Mandatory Damages for Willful Violation of Stay [RP 238], filed
February 21, 2006, said the Amended Complaint was served during my
bankruptcy. I cited Rule 1-005 NMRA requiring every pleading subsequent to
original complaint be served on each party unless they are in default for failure to
appear. I wrote, p.2, “I was waiting for papers to be served at a time when it didn’t
violate the Automatic stay,” and, “Leverick did not serve,” and asked, “Did he not
serve me because he wanted me not to know about the proceedings? It would

appear so, and that shows bad faith.” I said I relied on Rule 1-015 NMRA
which gives 10 days from service of amended complaint to answer. Exhibit
shows bankruptcy filed March 21, 2005.

On March 7, 2006, 11:25 a.m. Notice of Hearing at 10:00 a.m. March 8, 2006,
on Leverick’s Motion for Order Approving Special Master’s Report and
Confirming Foreclosure Sale, filed at [RP 357] was delivered to me. Rule 1-006
NMRA says notice shall be served no later than 5 days before hearing. So, on
March 8, 2006, because of my disability and the trauma of no hearing or notice
before foreclosure judgment and sale, and so little notice of the instant hearing I
didn’t fully understand what it was about. I showed my confusion by thanking Judge
Vigil for saying he was glad I made it, 10:11:06. Such thanks after notice so short
I’d called his chambers crying showed I was confused, just as my stammering
showed my disability. I knew I needed my bankruptcy because of my 1997 ex-
perience, but in confusion I withdrew my motion to reopen my bankruptcy, writing:

“It’s just that because the bankruptcy court always followed the rules it was

much

easier for me in that court than in the state court where they often elect

not to follow

the rules I’m relying on. I don’t understand it so I can’t say

anymore about it.

Except this is so time sensitive I better try one more time

the state court,” filed

February 21, and mailed February 23, 2006.

At 10:11:25, March 8, I said there was service of the other parties after bankruptcy
but I was wrong. At 10:22:17 Leverick failed to correct me by saying that no one
was served after my bankruptcy. Leverick was too tricky for me to follow at the
hearing. I listened to the CD over ten times to grasp his lies: at 10:22:32 Leverick
said the Complaint was filed March 5, 2005; in fact it was filed March 9, 2005 [RP
1]; at 10:22:40 Leverick lied, “We got notification through the bankruptcy center
that the Chapter 13 had been filed on March 23rd 2005 which was after the date
we had served her with the Amended Complaint.” In fact my Chapter 13 which
was filed March 21, 2005, see Exhibit 1 referenced p.1 of “Correction to Objection
to Approval of Sale and Foreclosure Judgment” [RP 223] and amended complaint
was served March 29, 2005 [RP 64, 66, 68, 70] in patent violation of the

automatic stay. I could not grasp on March 8, 2006, what Leverick speciously said
at 10:22:53:

“However under Rules 1-005 subparagraph (A) we’re not required to serve

her with the Amended Complaint ah if we don’t seek new or additional

claims

against her. Specifically it says, ‘No service need be made on parties

in default

for failure to appear except pleadings that assert new or additional

claims for

relief.’ The Amended Complaint was only brought before the court

to add the

additional parties to deal with their claims and their interest in

the property. It

did not assert a new or additional claim against Ms. Kline

and therefore, and

this has been the practice of this law firm for a long

period of time, we were

not required to serve her with any supplemental

pleadings in the case.”

By law I had 30 days to answer from service of Complaint on March 18,

2005

[RP 62]. I was not in default on March 29, 2005 [RP 66] when

Amended

Complaint was served in violation of stay and making it invalid to

bring parties

before the court. It was served to no one at any other time.

Leverick used my

misunderstanding and disability to cover up that he

served the Amended Complaint

in violation of

11 U.S.C §362

. And, he

lied. The Record shows

that he lie

I couldn’t grasp how sale was confirmed after I wired money to reinstate

10:17:25,

wire instructions at [RP 440]; despite saying at 10:17:54 I’d tried

to deposit

$128,250; and saying, 10:18:51 that Association liens exceeded

what’s authorized

by the Condominium Act. That night I realized what the

hearing was, why I needed the bankruptcy court and why Green had Hope

call me to be sure I came,

so I wouldn’t lose my rights, he said, according to

Hope. In reality he needed me

for an illusion of due process. That’s why

Judge Vigil was glad to see me.

March 13, 2006, Agnes Samora, Adult Protective Services, picked up the

CD for

me [RP 439] but it didn’t work where it was taken to be transcribed

so I still

couldn’t see what happened.

The fact is that the Certificate as to the Record [RP 136] did not show my

bankruptcy nor that the Amended Complaint was served in violation of the

stay;

therefore it could not validly show when my Answer was due for

purposes of

default. I asked Judge Vigil at 10:41:32, March 8, 2006, how he

counted to get 30

days; he said he didn’t have to answer. When I repeated all

the dates, slowly by

reading my Brief [RP 804] on May 9, 2006, Leverick

said at 1:17:19, that the

Clerk of the Court would not be able to know

about this. But Leverick prepared

he Certificate, so once again he’s lying

because he had a duty to make “this”

known. When Leverick recounts the

case he’s not honest and I object at 1:36:04,

but the Court lets him go on

and when he admits he and his office made a mistake

with the Certificate,

the Court immediately says, “Okay,” and with extreme

prejudice changed

the Certificate [RP 878] to benefit Green and deprive me of

my property

with denial of due process. The change did not however improve

the

validity of service to the necessary parties who were added in violation of

the

automatic stay on March 29, 2005.

Purdy argued, March 8, 2006 at 10:28:26 that despite my filed answer,

which

he noted Leverick had said I had not filed, there was no obligation

to serve me in

light of

Prudential Credit vs. Williamson

, 107 N.M. 212,

755 P.2d 56 ( S.Ct.

1988). However, the case is inapposite since Williamson

consented to foreclosure

while I had no papers served on me after March 29,

2005 when the Amended

Complaint was served in violation of

11 USC §362

At 10:34:19 on March 8, 2006, I said the Amended Complaint was served

March

29. At 10:34:45 I said, “that rule provides all papers be served on

me,”

and at

10:35:07 I said I was given a specific time by the rules to

answer but

Mr. Leverick

refused to, I stammer because of my disability,

then

say, “serve

me that and I

believe he did that specifically knowing that

would um, with

my disability that

I would be un...likely to catch it and

make

make...

appropriate.. without having

it…” I am unable to talk clearly.

(Contrast this

to when I read on May 9.) At

10:36:31 Judge Vigil interrupted,

saying he

understands. However when he talks

about my mental disabilities

10:37:48

and says at 10:37:51 “which are confirmed,

there’s even a medical

report in

here that confirms those, he goes on to say at

10:37:57, with extreme

prejudice and discrimination, “there are no provisions

that would grant you

any more leeway than anyone else, unless you have

counsel that would

request extensions of time in order to be able to appropriately

respond.” The

fact is I filed for extensions, which the Record shows [RP 152,

171]. At

10:38:43 he admitted that I am capable but have not always met time

constraints yet he does not apply

ADA, Title II

Since the medical report is attached to my Motion for Accommodation under

the

ADA, Title II

in which I cite

Tennessee v. Lane

, to say there are no

provisions is

abuse of discretion

. He said at 10:37:15 that he reviewed “all

the

pleadings and

rulings and court orders and motions that were filed,” so

it’s

plainly unreasonable

to say, 10:41:23, “Your version of what occurred is

not accurate and not

supported by the record.” The fact is, the Amended

Complaint was served on

March 29, 2005, in violation of the automatic stay;

when Leverick said

otherwise

he was lying. At 10:39:12 and 10:39:29 sale

was approved. I got sick on the

way

home and was sick for hours.

On May 5, 2006, the lawyer I hired mouthed Leverick’s statement of the

case

opposed to the truth which I had repeatedly brought to her attention,

even

during

the hearing at 4:39:38.

May 9, 2006, I who hadn’t seen other parties’ pleadings because Schneider

kept

them (and still won’t give me even papers I’d copied), appeared pro se.

At 1:09:15

the Court wrongly said my answer to Schneider’s motion

supported

her. Not so, in

#10, I’d written, “I wrote that the Amended

Complaint was

served while I was in

Chapter 13 and showed it to Ms.

Schneider during the

hearing. She whispered no,

that I’d been served the

Amended Complaint

before I was in bankruptcy. She is

wrong, confusing

the date of service of the

Complaint, March 18, 2005, with the

date of

service of the Amended

Complaint, March 29, 2005. This is in the record.”

Frahn v. Greyling Realization Corp.

, 239 Ala. 580, 583, 195 So. 758,

761

(1940).

“

The rule that a want of due process, so defined, voids a judgment

not redundant

with the rule that a want of personal jurisdiction likewise

voids a judgment, for a person already effectively made a party to litigation

could, on some critical motion or for some critical proceeding within that

litigation, be deprived of the 'notice, a hearing according to that notice, and

a judgment

entered in accordance with such

notice and hearing,' required

the Due Process Clause of the Fourteenth Amendment to the United States

Constitution, Frahn, supra. See

Winhoven

v. United St

tes,

201 F.2d 174

(9th

Cir. 1952),

Bass v. Hoagland

, 172 F.2d 205 (5th

Cir. 1949).”

I said at the March 8, 2005 hearing at 10:34:07 that I was relying on

that

rule

(1-005) and the specific time it gives me to answer but Leverick

refused to

serve me that (the Amended Complaint). That was critical.

Nesbit v. City of Albuquerque

, 91 N.M. 455 (NM S.Ct. 1977)

“

Judgment

which is

void cannot be cured by subsequent proceedings

.”

On page 459,

“

Since the 1973

judgment was void, the 1976 district court

was required

set

it aside pursuant to N.

M.R.Civ.P. 60(b)(4)

. [§ 21-1-1(60)(b)(4),

N.M.S.A.

1953 (Repl.Col.1970)].

There

is no discretion on the part of a

district court to set aside a void judgment. Such a judgment may be

attacked at any time in a

direct or collateral action

”

Chavez v.

County of

Valencia

, 86 N.M. 205, 521 P.

2d 1154 (1974) The vacating of

the 1973

judgment was proper.”

This shows

the standard of review.

I was waiting for the Amended Complaint so I could claim damages

caused

Association and I said this March 8, 2007, 10:11:25. Failure by

Plaintiff

validly

serve me and necessary parties the Amended

Complaint

[RP 64,

66,

68, 70] after

stay was lifted meant he proceeded in

effective

secret from

me,

shown by my shock

as described by Juliane

Hope in affidavit

filed on

February 9, 2006 [RP 212]. No

papers

subsequent to the Complaint

came to

me until after Green told Hope, his

co-

worker, that he owned my

condo. In

view of Leverick’s lies, any

rational person

must question the truth

of any

doc

of his, like [RP 134]

saying papers were mailed.

11 U.S.C. Section 362

. Automatic stay provisions of the Bankruptcy

Code.

Provide

for stay of all actions by a creditor against a debtor. The

automatic

stay stops all

collections efforts, all foreclosure actions. . . Any

action after

the

filing of the

petition in bankruptcy is null and void unless

the stay is

lifted

prior

to the action.

Fortier v. Dona Ana Plaza Partner

, 747 F.2d 1324 (10th Cir. 1984),

p 1330,

discusses meaning and Congressional purposes of the stay in

bankruptcy, and

outlines that the automatic stay is one of the

fundamental

debtor protections provided by the bankruptcy laws. It stops all collection

efforts, all harassment, and all foreclosure actions.

Valley Transit Mix v. Miller

928 F.2d 354 (10th Cir. 1991) the stay

provisions

are broad, they not only protect the property of the estate but

also

prohibit

“any act to collect… or to recover a claim against the

debtor…”

Leverick admitted at 10:23:21 on March 8th that the amended complaint

was

brought before the court “to add the additional parties to deal with

their

claims

and their interest in the property.” This was prohibited by the stay.

“Court actions taken in violation of the automatic stay are void and

without

effect.”

Roberts v. C.I.R.

, 175 F.3d 889;

Parker v. Bain

, 68 F.3d

1131;

Franklin Sav.

Ass’n

v. Office of Thrift Supervision,

31 F.3d 1020. “Actions

taken in

violation

stay are void rather than merely voidable,”

11 U.S.C.A.

§362(a)

–

Hillis

Motors,

Inc. v. Hawaii Auto Dealers’ Ass’n,

997 F.2d 581.

“Ordinarily,

any

action taken

in violation of stay is void and without effect,

even where

there is

no actual notice

of existence of stay,”

In re Calder,

907

F.2d 569.

This goes

to the abuse of

discretion standard of review.

There being abundant case law re the stay, I clearly had adequate reason to

believe the Amended Complaint would be validly served and I would then

required to answer.

Mullane v. Central Hanover Bank & Trust Co.

339 U.S. 306, 70 S.Ct.

652

(1950)

An elementary and fundamental requirement of due process in

any

proceeding

which is to be accorded finality is notice reasonably

calculated,

under all the circumstances, to apprise interested parties of the

pendency of

the

action and to afford them an opportunity to present their

objections. The

notice must be of such nature as reasonably to convey the

required

information and it must afford a reasonable time for those

interested to make

their appearance.”

Williamson

says of

Mullane

“Those cases, however, and others that

hold

notice by publication constitutionally infirm, are cases in which

persons

other

than parties to the foreclosure action, having a recorded

interest in

the

property, were deprived of that property with absolutely no

notice that

their

interests in the property had been foreclosed, and without a

hearing

concerning

those interests.”

In my case there was no hearing before foreclosure judgment and sale. I

trusted

Rule 1-005

and counted on the amended complaint being served

when

it was not

in violation of 11 USC §362, but it wasn’t and I had no

notice

foreclosure was

proceeding. The cross or counter claim I wanted to

file was

objection, but I

was given no opportunity to object because no

valid copy

the Amended

Complaint was served, making

Grannis v.

Ordean,

234 U.S.

385, 394 apply, "The

fundamental requisite of due

process of law

is the

opportunity to be heard." If due

process is truly a

then I

should not have to

repeating

and effectively shouting this. A mere

whisper

should have been enough. But on June 20, 2006, after I overcame the Court’s

stated problem of my “version” not being supported by the record, the court

objected to my use of bankruptcy to get more time, 1:48:17, failing to say I

had to since I was not given accommodation, and entered with

abuse of

discretion

for the opposition [RP 867, 869, 872, 878, 881, 884].

Foreclosure Judgment was improper on voidness grounds and must be set

aside/vacated as a matter of law; there is no discretion to do otherwise.

The

Amended Complaint was served in violation of the stay and Leverick knew

this or

he would not have lied; he knew that by not serving me he could

foreclose in

secret from me. It was improper for the court to enter a

judgment,

either in

December 2005 [RP 160] or March 2006 [RP 385] when

there was

jurisdiction over necessary parties added in the Amended

Complaint served

violation of the stay. I must be fully restored.

ISSUE II.

The Court improperly entered Default Judgment [RP 160] against

Kline because Kline’s actions constituted an appearance and therefore she

was

not in default for purposes of a default judgment.

SCRA 1-055

provides

for

the

procedure for default decrees. Provides default is not permissible

upon

answer of defendant.

On May 5, 2006, 4:19:39, Schneider says of default procedure after an

answer, that abundant case law states “court needs to look at the record to

figure out what

did and didn’t happen and there is no record that there was

ever a hearing; there

is no record that there was ever notice of a hearing.”

The

Court says, 4:20:04,

“That’s the problem when we change judges in

midstream here, I mean I don’t

know what thought process he went through.”

But the point is that it’s not a matter of unverifiable thought process; it’s a

matter

of the Record and the Record shows no hearing, nor notice of hearing

despite the

questions of fact I had in my Answer [RP 149] about the actual

amount Deutsche

Bank was entitled to, the Association’s claims and despite

raising the question of

violation of the automatic stay. “To fend off summary

judgment, the alleged

factual dispute must concern a fact that affects the

resolution of the controversy,”

See

Clay v. Horton Mfg. Co.,

172 Wis. 2d

349, 353-54, 493 N.W.2d 379 (Ct. App. 1992). At 4:20:26, the Court says,

“The appropriate procedure would have been for notice being given to Ms.

Kline that the Default Judgment was being entered and then a hearing held…”

But at 4:20:47 the Court appears to look for wiggle

room for the

Plaintiff, “I

don’t know even if Judge Sanchez would come and

testify that he – that he read her answer and found that it had no merit,

whether that allows you to skip the procedure of notification. Is there any

case

law on that that anyone has?”

Schneider replies, 4:21:21, “The Courts consistently hold that you’re entitled

your notice and it’s cited in the pleadings.” At 4:21:36 she says, “If you

look

at,”

the Court coughs, “the original application for default judgment,

look at

the

certification, Ms. Kline was never… on the mailing list for that

original

application… look at the certification on the notice of foreclosure

sale that was

entered in December, she was never on the notice… there was

no notice for

that.”

The Court interrupts, 4:22:03 “Well now normally that

wouldn’t be

required if

you’ve been defaulted out, you’re out.”

(The standard

of review is

abuse of

discretion.)

The point, however, is that I answered. I was not in default. Schneider says,

22:

10 “Actually, there’s a

ones v. Flowers

which just came down from…

the U.S.

Supreme Court on April 26th, says it is required.” The Court

argues,

4:22:18,

“Out! How can it be required? If they filed no answer, let’s

assume

there was no

answer.”

Such an assumption is unreasonable.

Schneider says, 4:22:46, “In this case the plaintiff knew my client wasn’t

served

because they didn’t... It’s not even in their certification. They knew

they weren’t

even serving her with the application for default.” Leverick

jumps

in 4:22:59,

“We weren’t required to serve her with the application.”

The Court

leads

Leverick, 4:23:05, “Your position is you’re not required to

give her

notice

because the clerk had issued the certificate of

non

appearance.” At 4:23:

13 Leverick follows as the Court has led and at

4:23:

52, Leverick falsely says,

“The plaintiff wasn’t responsible for Ms.

Kline’s

failure to timely file an

answer.”

The fact is that plaintiff was responsible because by serving the Amended

Complaint in violation of the stay the plaintiff caused me to wait for valid

service. And, Leverick knew this or he would not have lied on March 8. See

Issue I.

The bankruptcy court docket shows I knew about the foreclosure proceedings

and

inten

ded to ap

pear. (I made a copy of it and presented it in court on

May

9, 2006,

1:13:58.) I excused Judge Garcia [RP 147], filed an answer on October 24,

2005

[RP 149], and I asked for accommodation [RP 152]. These facts show

that I

intended to appear and was not in default when default judgment was

entered

without any hearing [RP 160].

On May 9, 2006, I read, citing a case that is shown in the NMRA book for

this

point,

“Stay was lifted on July 1, 2005. (I produce) Copy of Bankruptcy

Record/Docket pg 5 Note: It shows that I knew and Leverick knew

I knew

about the foreclosure action –“All that is necessary to constitute

“appearance” to avoid default judgment without notice, is an

affirmative act

the party showing knowledge of the suit and intention

to appear, this

affirmative act can be shown by contacts between

attorneys, by letter from

one attorney to the other or where plaintiff’s

attorney has acquiesced in

defendant’s request for more time to

answer.”

Gengler v. Phelps,

89 N.M.

793, 558 P.2d 62 (Ct. App.

1976).”

I filed Chapter 13 to pay creditors; clearly I would appear and fight for

$150,000+ equity. I read, “Certificate as to the State of the Record

fails to

account for bankruptcy/automatic stay.” I asked the Court to

read

the

Certificate

[RP 136] because I couldn’t get a copy since the

file was

chambers. The Court read it and after Leverick asked the

Court to

change it,

said, “Okay,” at 1:39:34. So at [RP 878] the

Certificate was

changed so it

wouldn’t show the amended

complaint;

which

did nothing

to improve its

invalid service on the necessary

parties.

Because I read my Brief [RP 804] which stated all the dates I’d stated

March 8

at which time the Court had said my “version” wasn’t

“supported

the record,”

I couldn’t be confused that I’d said them

wrong and Leverick

had

to agree with

them. But the Court failed to

change its March 8th Orders

even

though on March

8th it gave as its

reason that my version wasn’t

supported by

the record. The court

stopped me reading my brief, 1:31:33,

then

let Hayes

who had no

standing in the

foreclosure present argument,

prejudicial

to my

case,

38:

17.

Because the Court said on May 5 that I was “out of the running” for

redemption, I

had an order [RP 820] for the clerks to release my

deposit

ready

because I was

paying $7,500 interest to include $250/wk

which

Fenton

made a

waste.

(Previously my Realtor, Holman, wanted

me to let

my home be

sold,

rather than

file bankruptcy. He kept saying I

could

redeem. So it is only

by the

grace of

God and federal law that I kept my home, and now this horror threatens

that.

This

unremitting trauma/stress hurts my health. Marmot’s Status

Syndrome

shows that

stress kills.

Dyer v. Pacheco

98 N.M. 670, 651 P.2d 1314 (Ct. Appl. 1982) “Any

doubts

about

whether relief should be granted are resolved in favor of

the

defaulting

defendant

because default judgments are not favored in

the

law; in

the

absence

of a showing of

prejudice to the plaintiff, cases

should be tried

upon

the

merits.”

My cashiers check attached at [RP 534, 540, 543] and wire instructions

attached

at [RP 440] show there was no prejudice to plaintiff. My right to

claim against

the Association was denied by the Amended Complaint’s

[RP

64,

66, 68, 70]

invalid service, but I still answered [RP 149]. The

Association’s

liens basic to

Green redeeming would not have survived if

tried on merits.

Note: my Amended

Third Party Complaints in cases D-101-

CV-200400390

and D-101-CV-

200400619, naming the Association. Both

were dismissed, the

Court said, because

the Third Parties were not a part of

the action. Clearly I

wanted adjudication and

here the parties should have

been in the action. I

made effective appearance even

after Amended

Complaint’s void service [RP

64, 66, 68, 70] so foreclosure

Judgment,

Approval of Sale, and Redemption

must be set aside as a matter of law.

Ortega v. Vigil

22 N.M. 18, 158 P. 487 (1916) “Answer filed by

defendant

after time therefore had expired was not a nullity, and so long

as it

remained

on file and undisposed of, rendition of default judgment

constituted

irregularity for which judgment could set aside upon motion

filed within

one

year from date of rendition of such judgment.”

I filed motion to set aside on March 16, 2006, less than a year later. Despite

my answer and effective appearance the court entered for the opposition [RP

867,

869, 872, 878, 881, 884].

State v. Duran,

107 NM 603, 762 P.2d 890, at p 608-609 “

to establish a due

process violation, and thus reversible error, the defendant must demonstrate

prejudice.

” My bankruptcy showed I intended to fight for my equity, so did

excusing Judge Garcia and answering. Two prejudices are that I spent

$5,000

my property after it had been foreclosed and sold without notice to

me,

another

was losing $150,000+ in equity.

The due process violation is

reversible

error.

remedy this, I must be made whole with proceeds from

my condo

equaling those I

would have received had the court not

discriminated against

me and denied me

due process

ISSUE III.

Foreclosure judgment entered December 15, 2005 [RP 160] was

improper for violation of

ADA, Title II

, by failing to provide accommodation

my disability [RP 152].

Americans with Disabilities Act, Title II

, mandates accommodation. I will

copiously quote because Judge Vigil said with discrimination and abuse of

discretion, on March 8, 2006, 10:37:57, “there are no provisions that would

grant

you any more leeway than anyone else,”:

"Title II, §§12131-12134, prohibits any public entity from

discriminating

against

“qualified” persons with disabilities in the provision

or operation of

public services,

programs, or activities. The Act defines the

term “public

entity” to include state and

local governments, as well as their

agencies and

instrumentalities. §12131(1).

Persons with disabilities are

“qualified” if

they,

“with or without reasonable

modifications to rules,

policies, or

practices, the

removal of architectural,

communication, or

transportation

barriers, or the

provision of auxiliary aids and

services, mee

[t] the essential

eligibility

requirements for the receipt of services or the

participation in

programs or

activities provided by a public entity.” §12131

(2).”

And, the regulations say:

Title 28

– Judicial Administration, Chapter 1 – Sec. 35.107(a)

Designation

responsible employee. A public entity that employs 50 or

more persons

shall

designate at least one employee to coordinate its efforts to comply with and

carry out its responsibilities under this part, including any investigation of any

complaint communicated to it alleging its noncompliance with this part or

alleging any actions that would be prohibited by this part. The public entity

shall make available to all interested individuals the name, office address, and

telephone number of the employee or employees designated pursuant to this

paragraph.

Tennessee v. Lane

541 U.S. 509 (2004), “The Due Process Clause also

requires

the States to afford certain civil litigants a “meaningful opportunity

be heard” by

removing obstacles to their full participation in judicial

proceedings.

Boddie v.

Connecticut

401 U.S. 371, 379 (1971).”

For me to have been afforded meaningful opportunity to be heard

disability

had to be accommodated with added time. Failure to hear

motion

under

the

ADA, Title II

for accommodation [RP 152] and

entering

Foreclosure

Judgment [RP 160] relying on Certificate of Record

[RP 136]

showing no time

added to accommodate my disability

discriminated against

me. Setting March

8, 2006

hearing 2 days before

my 14 days to answer

under

Rule 1-007.1(D)

NMRA

plus 3

days for

mailing under

Rule 1-006(D)

expired denied me due

process, and it could

be reasonably foreseen that with

my disability I would be

unable to

address the

denial.

These were obstacles that had to be removed to afford me accessibility and

full

participation in the judicial proceedings, and as such violated the Due

Process

Clause and discriminated against me.

The operative thing is the Court’s determined discrimination visible March

when I was unable to talk clearly and the Judge interrupted, 10:36: 31,

saying

understood. He spoke of my disabilities 10:37:48 saying, 10:37:

51,

“which

are

confirmed, there’s even a medical report in here that

confirms

those.” But

with

extreme prejudice and discrimination said, 10:37:

57, “there

are no

provisions

that would grant you any more leeway than

anyone else,

unless you

have counsel

that would request extensions of time in

order to be

able to

appropriately

respond.” The fact is I did that [RP 152,

171]. The

medical

report is attached to

my Motion for Accommodation under

the

ADA, Title II

[RP 152]. In it I cite the

law and Tennessee v. Lane, so to

say

there are no

provisions

is unreasonable and

an abuse of discretion

Listen to

the CDs and

compare when I try to talk on March

8, to me reading

on May

9 what I was

able to write. The difference shows my

disability. I

used to be

able to talk the

way I now can write with additional time,

and

read; I had my

Neuropsychological Evaluation showing my loss of process

speed and

working

memory attached to my Motion for Accommodation [RP

152].

Tennessee v. Lane,

“

It is not difficult to perceive the harm that Title II

designed

to address. Congress enacted Title II against a backdrop of

pervasive

unequal

treatment in the administration of state services and programs,

including systematic

deprivations of fundamental rights. . . The decisions of

other courts, too, document a pattern of unequal treatment in the

administration of a wide range of public services, programs, and activities,

including the penal system,11 public education,12 and voting.13 Notably,

these

decisions also demonstrate a pattern of unconstitutional

treatment in

the

administration of justice.14”

In a pattern of unequal treatment in administration of justice, my motions

seeking

to have denial of due process righted [RP 208, 209, 212, 223, 238,

269, 325, 326,

328, 332, 336, 371, 440, etc.] were denied; my first motion

seeking

accommodation [RP 152], the removal of barriers to accessibility,

was

ignored,

so all things considered the discrimination was egregious

Tennessee v. Lane,

“

This pattern of disability discrimination persisted

despite

several federal and state legislative efforts to address it. In the

deliberations

that led

up to the enactment of the ADA, Congress identified

important

shortcomings in

existing laws that rendered them “inadequate to

address the

pervasive problems of

discrimination that people with

disabilities

are facing.”

S. Rep. No. 101—116, at 18.